NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0870-16T4
CP# 1109, LLC, a Delaware LLC,
Plaintiff-Appellant,
and
MARTIN E. O'BOYLE,
Plaintiff,
v.
CONTINENTAL MOTORS, INC., a Delaware Corporation, and MATTITUCK SERVICES, INC., f/k/a TELEDYNE MATTITUCK SERVICES, INC., a Delaware Corporation,
Defendants-Respondents.
Argued May 10, 2018 - Decided August 29, 2018
Before Judges Simonelli, Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4837-13.
Jonathan R. O'Boyle argued the cause for appellant (The O'Boyle Law Firm, PC, attorneys; Jonathan R. O'Boyle, of counsel and on the briefs).
Frank J. Vitolo argued the cause for respondents (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Frank J. Vitolo, of counsel and on the brief; Thomas M. Kenny, on the brief).
PER CURIAM
In 2015, plaintiff CP#1109, LLC filed an amended complaint
against defendants Continental Motors, Inc. (CMI) and Mattituck
Services, Inc. (Mattituck), alleging that CMI's defective engine
cylinders caused damage to plaintiff's single engine airplane
after they were installed by Mattituck, CMI's authorized service
center. Plaintiff asserted causes of action for breach of express
warranty, breach of contract, and violations of the New Jersey
Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the Magnuson-
Moss Warranty Federal Trade Commission Improvement Act (MMWA), 15
U.S.C. §§ 2301 to 2312.1
After a five-day trial conducted from May 5 to 12, 2016, the
jury returned a verdict in favor of defendants. Plaintiff now
appeals from the conforming final judgment entered on July 13,
2016, arguing reversible trial errors consisting of the admission
1 Plaintiff's amended complaint replaced its original nine-count complaint filed in 2013 and sounding in products liability. The trial court granted plaintiff's motion to file an amended complaint after granting defendants' motions for summary judgment on plaintiff's products liability claims.
2 A-0870-16T4 of a spreadsheet as a business record, confusing jury instructions,
an erroneous jury verdict form, the omission of an adverse
inference instruction, and cumulative error. Plaintiff also
argues error in the imposition of taxed costs following the
verdict. We have considered these arguments in light of the record
and applicable legal principles. We reject each of the points
raised on appeal and affirm.
We recount the facts relevant to this appeal. CMI is a
manufacturer of reciprocating engines for general aviation
aircrafts. The engine at the heart of this case was manufactured
by CMI and ultimately installed in the airplane sold to plaintiff
in 2008. Plaintiff purchased the airplane used. In November
2010, plaintiff contacted CMI's customer service team to report a
cracked crankcase in the engine in need of repair. CMI recommended
sending the damaged engine to Mattituck, CMI's distributor and
repair facility located in New York. Plaintiff arranged for
Albatross Air, a company in West Virginia where the airplane was
located at the time, to remove the engine from the airplane and
ship it to Mattituck. Once Mattituck received the engine, they
repaired the crankcase and replaced two of the engine's cylinders
with new cylinders manufactured by CMI and covered by CMI's
cylinder warranty. The repaired engine was then shipped back to
3 A-0870-16T4 Albatross Air, which reinstalled the engine and returned the
airplane to plaintiff.
Subsequently, on September 27, 2012, CMI was notified that
an aircraft in Nevada was grounded after the engine, which was
manufactured by CMI, overheated. A subsequent investigation of
the coolant in the engine revealed that the cylinders were
contaminated with casting sand from the factory during the
manufacturing process. CMI immediately notified the Federal
Aviation Administration (FAA) and instituted remedial measures
that were later approved by the FAA,2 including reviewing
manufacturing records to determine what cylinders were potentially
affected in order to conduct inspections. As a result of that
review, CMI identified fifty-five potentially affected cylinders,
including plaintiff's. Some of the fifty-five cylinders were in
CMI's inventory, but some, like plaintiff's, had been shipped to
distributors and were already in the field. After conducting some
inspections, CMI determined that not every part was affected.
Rather, some parts had a small amount of sand and some parts had
no sand at all.
2 In response to CMI's notification, the FAA concluded that the investigation "indicated the deficiency was not deliberate or intentional . . . nor was there a lack of competency." Moreover, CMI's remedial actions "demonstrated a constructive attitude" towards compliance.
4 A-0870-16T4 Because CMI did not sell directly to consumers, in order to
inspect the potentially affected cylinders in the field, CMI
conducted an investigation, which involved a lengthy process of
identifying, locating, and contacting the purchasers. The first
step in the process was to locate the serial numbers of the
affected cylinders and cross-reference those numbers with the
sales orders to determine which distributors received the
cylinders. Then, CMI had to contact the distributors to ascertain
the identity of the ultimate purchaser. Once CMI obtained that
information, CMI could then contact the purchasers directly.
In conducting the investigation, CMI's customer service team
developed and maintained a spreadsheet used to track the serial
numbers of the affected cylinders, the distributors, and, once
identified, the ultimate purchasers. The spreadsheet listed any
contact CMI had with these individuals or entities. According to
the notations on the spreadsheet, CMI emailed Mattituck to
determine who purchased the two cylinders Mattituck had placed in
plaintiff's airplane engine. Mattituck identified Tim Kearns of
Albatross Air as the purchaser. The spreadsheet also indicated
that on November 5, 2012, CMI contacted Kearns who identified
CP#1109's owner, Martin O'Boyle,3 as the owner of the airplane.
3 Originally, O'Boyle was a named plaintiff in the complaint. However, the trial judge dismissed O'Boyle from the case on the
5 A-0870-16T4 Additionally, the spreadsheet noted that CMI contacted Chip Bonner
from Southeast Aero Services, Inc. (Southeast), who stated that
O'Boyle's airplane was located at his facility in St. Augustine,
Florida.
Despite CMI's efforts to identify and notify purchasers,
plaintiff claimed it was never notified by CMI and first became
aware of the problem on or around January 16, 2013, when Bonner
conducted an annual inspection of the aircraft and reported that
the engine's water pump was running hot, causing the engine to
overheat and rendering the aircraft unsafe to fly. Additionally,
plaintiff claimed that after the airplane was returned from
Mattituck in 2011, there were problems with the engine, including
overheating and lack of power, which conditions progressively
worsened. Plaintiff requested a new engine from CMI and incidental
costs for having the plane grounded. CMI responded that pursuant
to its "component cylinder warranty," it would only be responsible
for repairing or replacing the cylinders and components affected
by the cylinders, and was not required to provide plaintiff with
a new engine. CMI offered plaintiff a $30,000 credit towards
either a rebuilt engine, at a cost of $51,906, or a new engine,
at a cost of $60,991. Plaintiff rejected the offer and reiterated
last day of trial, ruling that he had "no separate interest" or cause of action in an individual capacity.
6 A-0870-16T4 its demand for a new engine at no cost, plus consequential damages.
After CMI refused, plaintiff sued.
At trial, Martin O'Boyle and William Ring testified for
plaintiff. Ring, an attorney and corporate officer of plaintiff,
testified about plaintiff's interactions with defendants in
connection with the engine repairs, the circumstances under which
plaintiff discovered the sand contamination, the failed
negotiations between plaintiff and defendants, including
plaintiff's claim that defendants reneged on their initial offer
to replace the engine free of charge, and the monetary damages
sought by plaintiff.
Michael Ernest Ward, CMI's Director of Certification and
Airworthiness, testified for defendants. Ward testified about his
handling of CMI's special investigation in response to the reported
sand contamination as well as the terms of the limited warranty
covering the cylinders. According to Ward, the warranty covered
each cylinder shipped from CMI on or after April 2, 2010, and was
limited to repair or replacement of the component parts, rather
than the engine as a whole. The warranty also expressly excluded
"incidental or consequential damages arising out of any defect in
the cylinders or related part . . . ." The warranty was explained
on a "TopCare card[,]" that was included in the cylinder shipments
and was available on CMI's website. Typically, the aircraft
7 A-0870-16T4 mechanic would insert the warranty card in the engine log book
along with the other documentation for the aircraft. In rebuttal,
Ring denied "receiv[ing] any notification of [the] warranty."
Defendant also presented the testimony of Terry Lee Horton,
CMI's designated corporate representative who was qualified "as
an expert in the operation, maintenance, and repair" of the same
type of engine as plaintiff's. Horton testified that based on his
review of the engine log book, there was no dangerous condition
reported in plaintiff's aircraft in 2011 or 2013. Rather,
according to Horton, following the January 4, 2013 annual
inspection, Bonner, whom Horton knew as a competent mechanic,
signed the logbook indicating that plaintiff's aircraft was "in
an airworthy condition[.]" Further, Horton testified there was
no indication of cooling issues in any of the logbook entries
after maintenance checks. Although Horton did not examine the
pump in plaintiff's airplane, based on his review of the records
and photographs, he found no evidence "that there was sand
contamination in [the] coolant system" of plaintiff's airplane.
Horton testified that if the cylinders installed in plaintiff's
engine were contaminated with sand and "if the pump had damage to
it caused by sand, you would see erosion." Horton concluded he
had "no reason to believe that there was any issue with
8 A-0870-16T4 airworthiness of [plaintiff's] engine and its ability to perform
properly and . . . function normally."
Following deliberations, the jury rendered a verdict in favor
of defendants. Pertinent to this appeal, in responding to
questions four and five, respectively, on the verdict sheet, the
jury found that CMI "issue[d] an express warranty, directly or
indirectly, to [plaintiff] pertaining to the cylinders installed"
in plaintiff's airplane, but that CMI did not breach same. Other
than question four, which was a vote of 6-1, the jury's vote was
unanimous on all other questions. This appeal followed.
First, plaintiff challenges the trial judge's admission of
the excel spreadsheet, identified as D-44 in evidence, as a
business record, arguing that it "failed every prong of the
business records test[,]" and was not harmless error because "D-
44 was the only evidence presented that challenged" plaintiff's
failure to warn theory under the CFA. We disagree.
"A trial court's evidentiary rulings are 'entitled to
deference absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment.'" Belmont Condo. Ass'n v.
Geibel, 432 N.J. Super. 52, 95 (App. Div. 2013) (quoting State v.
Marrero, 148 N.J. 469, 484 (1997)). Thus, we will uphold "a trial
court's evidentiary ruling . . . 'unless it can be shown that the
trial court palpably abused its discretion, that is, that its
9 A-0870-16T4 finding was so wide off the mark that a manifest denial of justice
resulted.'" Id. at 95-96 (quoting Green v. N.J. Mfrs. Ins. Co.,
160 N.J. 480, 492 (1999)).
N.J.R.E. 803(c)(6), known as the business records exception
to the hearsay rule, allows the admission of
[a] statement contained in a writing or other record of acts, events, conditions, and, subject to [Rule] 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
"The purpose of the business records exception is to 'broaden the
area of admissibility of relevant evidence where there is necessity
and sufficient guarantee of trustworthiness.'" Liptak v. Rite
Aid, Inc., 289 N.J. Super. 199, 219 (App. Div. 1996) (quoting
State v. Hudes, 128 N.J. Super. 589, 599 (Cty. Ct. 1974)).
In order to qualify under the rule, the proponent must satisfy
three conditions:
First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.
10 A-0870-16T4 [State v. Sweet, 195 N.J. 357, 370 (2008) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985) (footnote omitted)).]
However, the foundation witness need not "have personal knowledge
of the facts contained in the record." Hahnemann Univ. Hosp. v.
Dudnick, 292 N.J. Super. 11, 17-18 (App. Div. 1996).
Here, after plaintiff objected to the admission of the excel
spreadsheet, the judge conducted a N.J.R.E. 104 hearing during
which Ward testified that although he was responsible for
overseeing CMI's special investigation into the sand
contamination, including identifying and contacting purchasers of
potentially affected cylinders, it was CMI's customer service
department's function to actually identify the affected cylinders
and contact the purchasers. Ward testified that Exhibit D-44 was
"an Excel spreadsheet that was created by [CMI's] customer service
department to track . . . the notification information" and "to
document" that "the notification . . . was accomplished."
He testified further that Exhibit D-44 was created by Shaine
Little, who had personal knowledge of the acts and events appearing
in it, and was created at or near the time of the events appearing
in the record. According to Ward, the records were kept in the
course of CMI's regularly conducted business activity and it was
CMI's regular practice to make such a record in connection with
11 A-0870-16T4 these types of special investigations, although "[i]t may not be
in . . . this specific Excel format."
On cross-examination, Ward indicated that although he did not
personally create the spreadsheet, he had personal knowledge of
the circumstances of its creation from "conversation with Shaine
Little" and "[k]nowing how customer service conducts . . . these
types of notifications." According to Ward, it was "the practice
in the customer service department," that "when they speak to
someone on the phone[,] they will make a notation into this
tracking document." He reiterated that exhibit D-44 was created
as individuals were contacted during the course of the
investigation, from September 27, 2012 to February 2013, and was
not created in anticipation of litigation but was rather "a live
document that [was] updated during the process" to track the
notifications. Ward further testified that in his twenty-three
years at CMI, he had received documents similar to Exhibit D-44
on three or four occasions in connection with similar
investigations.
Following the hearing, the judge admitted exhibit D-44 to
show "who was contacted [by CMI], and when" they were contacted.
To support his ruling, the judge determined that Ward was in charge
of the investigatory process, had been involved in similar
investigations over the years, albeit only three to four, and "in
12 A-0870-16T4 each of the circumstances there has been a compilation of
information . . . that[] essentially[] records the type of
information that is reported here." According to the judge, Ward's
"knowledge of customer service and the way in which they operate,
and his particular knowledge of . . . Shaine Little," demonstrated
that "the process that was taken here" complied with N.J.R.E.
803(c)(6) inasmuch as the information was supplied "by a person
with actual knowledge[.]"
However, the judge limited exhibit D-44's admissibility by
redacting any reference to the results of the investigation or any
conclusions drawn in connection with the investigation. The judge
explained that while a business record made in the regular course
of business is admissible, the "record may contain . . . other
hearsay that is so far removed from the duty to record" that it
"has the ability to create some undue prejudice . . . ." Thus,
"[t]o the extent that there is embedded within it another layer
of hearsay information having to do with the opinions of others
concerning the condition of this engine, that goes to the heart
of this question[,]" the judge redacted such information.
We agree that Ward's testimony established the foundational
prerequisites for admission of the excel spreadsheet under
N.J.R.E. 803(c)(6) as a business record. We reject plaintiff's
contentions that the spreadsheet lacked temporal proximity or was
13 A-0870-16T4 created in anticipation of litigation. We also reject plaintiff's
attempt to analogize these facts to the facts in Palmer v. Hoffman,
318 U.S. 109, 111-14 (1943), where the Court held that a single
incident report that was only prepared due to an unusual accident
was not routinely created. Here, Ward had reviewed this type of
information in connection with three or four special
investigations in Ward's twenty-three years with CMI, and, in
every one of them, a document mirroring Exhibit D-44 was created.
Next, plaintiff contends that the jury instructions "were
confusing" and "[q]uestion [four] of the verdict form misstate[d]
the law of warranties." Plaintiff asserts the judge erred in
overruling its objection, warranting reversal. We disagree.
Proper jury charges are essential to a fair trial, Reynolds
v. Gonzalez, 172 N.J. 266, 288 (2002), and the failure to provide
clear and correct jury charges may constitute plain error. Das
v. Thani, 171 N.J. 518, 527 (2002). Indeed, "[e]rroneous
instructions are poor candidates for rehabilitation as harmless,
and are ordinarily presumed to be reversible error." State v.
Afanador, 151 N.J. 41, 54 (1997).
However, generally, we "will not disturb a jury's verdict
based on a trial court's instructional error 'where the charge,
considered as a whole, adequately conveys the law and is unlikely
to confuse or mislead the jury, even though part of the charge,
14 A-0870-16T4 standing alone, might be incorrect.'" Wade v. Kessler Inst., 172
N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235,
254 (1996)). Similarly, "a trial court's interrogatories to a
jury are not grounds for a reversal unless they were misleading,
confusing, or ambiguous." Sons of Thunder v. Borden, Inc., 148
N.J. 396, 418 (1997). In fact, when "reviewing an interrogatory
for reversible error," the interrogatory should be "consider[ed]
. . . in the context of the [jury] charge as a whole," as "[a]n
accurate and thorough jury charge often can cure the potential for
confusion that may be present in an interrogatory." Ponzo v.
Pelle, 166 N.J. 481, 491 (2001).
Here, plaintiff contends that "the [j]ury instructions as it
applied to affirmative misrepresentations were confusing when read
to the [j]ury in situ" because "the scienter requirement of
unconscionable practices elided with the affirmative
misrepresentation charge[,]" which, "under New Jersey's Consumer
Fraud Act do not contain mens rea as an element." Following the
charge, plaintiff's counsel noted that there "may[]be some
confusion as to unconscionable practices and affirmative
misstatements" as "it just seemed to [him] that they were almost
joined at the hip." The judge responded that he "[a]ctually
. . . separated them" and determined that the charge was
"adequate."
15 A-0870-16T4 We agree with the judge's assessment. In fact, the jury
charge tracked the Model Jury Charge (Civil), 4.43, "Consumer
Fraud Act" (2011). "Generally speaking, the language contained
in any model charge results from the considered discussion amongst
experienced jurists and practitioners." Flood v. Aluri-
Vallabhaneni, 431 N.J. Super. 365, 383-84 (App. Div. 2013). Thus,
there is a "presumption of propriety that attaches to a trial
court's reliance on the model jury charge . . . ." Estate of
Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 596 (2015).
Next, plaintiff contends that question four of "[t]he verdict
form allowed the jury to [consider] the terms of an express
warranty so long as it was issued directly or indirectly, even if
that indirect issuance was unilateral by merely posting the
warranty online." We are satisfied that question four was neither
confusing nor a misstatement of the law. In any event, some errors
or ambiguities on the verdict sheet will not constitute reversible
error where, "in the context of the entire trial," it is apparent
the jury was not confused. Maleki v. Atl. Gastroenterology
Assocs., P.A., 407 N.J. Super. 123, 132-34 (App. Div. 2009). Here,
the jury posed no questions about the verdict form and the
accompanying jury charge was accurate and thorough.
Next, citing Washington v. Perez, 219 N.J. 338 (2014),
plaintiff claims the judge "erred by allowing [defense counsel]
16 A-0870-16T4 to argue to the jury an adverse inference against the [p]laintiff
because it failed to produce an expert" after the judge failed to
give an adverse inference charge. In Washington, our Supreme
Court recognized, as has been long held, that the failure to offer
testimony within the party's power to produce permits an inference
that the missing testimony would be unfavorable to that party's
case. Id. at 352. "Whether a litigant seeks to have the court
instruct the jurors on this adverse inference or to urge the
inference in closing argument, the trial court has the
responsibility to determine if the inference is reasonable under
the circumstances of the case." State v. Velasquez, 391 N.J.
Super. 291, 306 (App. Div. 2007).
We acknowledge that "[t]his court and others have stressed
the need for trial courts to exercise caution in authorizing the
inference[,]" ibid., and that a missing witness charge "will rarely
be warranted when the missing witness is not a fact witness, but
an expert." Washington, 219 N.J. at 364. However, "it is one
thing for counsel in . . . summation to point to the absence of
particular witnesses; it is quite another when the court puts the
weight of its authority behind such a summation by telling the
jury it may draw an adverse inference from their absence." State
v. Hill, 199 N.J. 545, 562 (2009) (quoting Wild v. Roman, 91 N.J.
Super. 410, 415 (App. Div. 1966)).
17 A-0870-16T4 Here, prior to summations, plaintiff's counsel queried
whether defense counsel would "seek[] an adverse inference from
the absence of an expert" testifying for plaintiff. Defense
counsel responded that he was "going to say there's no expert here
for the other side[,]" but he was not going to identify plaintiff's
missing expert "[b]y name[.]" The judge responded that he would
"certainly permit that." During summation, defense counsel stated
"[p]laintiffs have no expert in this case to contradict anything
that Mr. Horton said," and "[y]ou'd think they would have an expert
who looked at the pump to come in and explain to you this is what
the damage shows."
In these circumstances, we are satisfied there was no
reversible error. The import of defense counsel's comments was
to point out that plaintiff failed to prove its case and failed
to rebut defendants' expert with expert testimony of its own.
Notably, as represented, defense counsel did not name a missing
witness. Unlike a criminal case where "the presumption of
innocence and the State's obligation to establish each element of
the crime charged . . . must be considered" when the inference is
sought against a defendant, Velasquez, 391 N.J. Super. at 309,
here, the burden of proof rested squarely on plaintiff. "[C]ounsel
has great latitude during closing arguments" as long as comments
are "restrained within the facts shown or reasonably suggested by
18 A-0870-16T4 the evidence adduced." Tartaglia v. UBS PaineWebber, Inc., 197
N.J. 81, 128 (2008) (quoting State v. Bogen, 13 N.J. 137, 140
(1953)). Here, defense counsel's comments were duly restrained.
Because we find no merit in any of plaintiff's contentions
asserting trial error, we reject plaintiff's claim of cumulative
error. See State v. Rambo, 401 N.J. Super. 506, 527 (App. Div.
2008) ("Having found no error, we reject defendant's invocation
of the principle of cumulative error.").
Finally, we address plaintiff's assertion that the judge
erred when he issued an amended final judgment imposing taxed
costs after "the clerk failed to tax costs in the first instance
under [Rule] 4:42-8(a),(c)." Further, plaintiff contends the
judge "erred when [he] failed to review costs [p]laintiff
challenged under [Rule] 4:42-8(a) . . . ."
The decision to award costs is within the trial court's
discretion and is reviewable for an abuse thereof. Children's
Inst. v. Verona Twp. Bd. of Adjustment, 290 N.J. Super. 350, 358
(App. Div. 1996). Rule 4:42-8(a) provides that "[u]nless otherwise
provided by law, these rules or court order, costs shall be allowed
as of course to the prevailing party. The action of the clerk in
taxing costs is reviewable by the court on motion." In seeking
costs, Rule 4:42-8(c) mandates that
[a] party entitled to taxed costs shall file with the clerk of the court an affidavit
19 A-0870-16T4 stating that the disbursements taxable by law and therein set forth have been necessarily incurred and are reasonable in amount, and if incurred for the attendance of witnesses, shall state the number of days of actual attendance and the distance traveled, if mileage is charged.
After the jury returned the verdict in defendants' favor, on
June 24, 2016, defendants applied to the clerk to tax costs against
plaintiff in the amount of $13,068.25, submitting a supporting
certification in accordance with Rule 4:42-8(c). Plaintiff did
not object to the application. For reasons that are not apparent
on this record, the clerk failed to tax costs. However, on July
13, 2016, the trial judge entered an amended final judgment
awarding taxed costs in the amount requested payable "no later
than twenty . . . days following the service of [the] [a]mended
[j]udgment . . . ."
On August 5, 2016, plaintiff moved to review the taxation of
costs, claiming the costs were too high and inappropriate. By
then, the trial judge had retired. Thus, on September 16, 2016,
a different judge adjudicated plaintiff's application and denied
the motion. Deferring to the trial judge who was "familiar with"
the case, the motion judge explained that plaintiff did not
challenge the application previously and "even though they may
have been regular costs of litigation," the trial judge may have
20 A-0870-16T4 assessed the costs "because of how late in the case [defendants]
became aware that these people had to be flown in, and the like."
While we would have preferred a more detailed explanation for
the trial judge's reasoning, appeals are taken from orders or
judgments and not the reasons for them. Ellison v. Evergreen
Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993). N.J.S.A. 22A:2-
8 allows "[a] party to whom costs are awarded . . . to include in
his bill of costs his necessary disbursements," for "[t]he legal
fees of witnesses, including mileage for each attendance . . .;"
"[t]he costs of taking depositions when taxable, by order of the
court;" "Sheriff’s fees for service of process . . .;" "[a]ll
filing and docketing fees and charges paid to the clerk of court;"
and "[s]uch other reasonable and necessary expenses as are taxable
according to the course and practice of the court or by express
provision of law, or rule of court."
Defendants' certification submitted in support of the
application for taxed costs sought "[d]isbursements" for postage,
photocopying, messenger service, Superior Court deposits,
recording and filing fees, Sheriff and subpoena fees, and outside
duplication costs. Defendants also sought "witness fees" and
"deposition[]" expenses for out of state witnesses, including
airfare, lodging, car rental, food and associated costs.
21 A-0870-16T4 In its merits brief, defendants assert the case "was plagued
by [p]laintiff's inexcusable delays and gamesmanship, which
included a no-show on trial day, the eleventh-hour withdrawal of
trial counsel and several unilateral trial adjournment requests."
Indeed, on April 28, 2015, the trial judge entered an amended case
management order scheduling trial on May 26, 2015. On October 28,
2015, the trial judge dismissed plaintiff's complaint with
prejudice and relieved plaintiff's then attorney as counsel,
finding that plaintiff "failed to appear for trial" and "[was] not
ready to proceed to trial and that plaintiff['s] counsel could no
longer continue with his representation of plaintiff[] . . . ."
Although the trial judge later reinstated plaintiff's complaint
in a December 21, 2015 order, the judge scheduled trial for
February 8, 2016, a date that was subsequently adjourned, and
granted defendants' motion for attorneys' fees.
Given the trial judge's familiarity with the procedural
history of this litigation, we discern this to be the rationale
for the judge's determination. Thus, we are satisfied that the
record contains ample reasons supporting the judge's exercise of
his sound discretion.
Affirmed.
22 A-0870-16T4